New Warning Notification Rules In Effect For Any Winery Shipping into California

All wineries with 10 or more employees shipping wine direct to California consumers, including Washington wineries, must comply with the health warning statements required under California’s Safe Drinking Water and Toxic Enforcement Act of 1986, known as Proposition 65 (“Prop 65”). As of August 30, 2018, the new “safe harbor” warning regulations are in effect, and the previous 2008 warning regulations are no longer available as a safe harbor compliance option.

Specifically, the new regulations require a Prop. 65 Alcohol Beverage Warning to be displayed on winery websites before any sale to a California resident, on catalogs sent to a California address, and on or in packages containing direct-to-consumer orders sent to a California address.

(NOTE: if a winery is a party to a court-approved settlement known as a consent judgment, it can continue to use the warning language provided for in that consent judgment, but only for the specific products covered in the consent judgment. Additionally, if the winery opted into the 2014 Proposition 65 Consent Judgment negotiated by the Wine Institute, it may continue to use the existing Prop. 65 alcohol warning).

The new requirements that apply to wine sold direct to California consumers are as follows:

• Warning statement:WARNING: Drinking distilled spirits, beer, coolers, wine and other alcoholic beverages may increase cancer risk, and, during pregnancy, can cause birth defects. For more information go to www.P65Warnings.ca.gov/alcohol.
• The word “WARNING” must be in all capital letters and bold print.
• The warning statement font size must be at least equal to the largest font used for other consumer information on the product. In no case shall a warning appear in a type size smaller than 8 point font.
• The warning statement should be placed on or in the wine shipping container or delivery package.
• The warning statement must be readable and conspicuous to the recipient prior to consumption of the wine.
• If the wine packaging contains BPA, the new Point of Sale BPA Warning must also be included on the website and catalogs, and the new Point of Display BPA Warning must be included in or on direct-to-consumer shipments to California addresses.

For general guidance on the new Prop 65 rules, see this legal alert, and if you would like to speak to a Stoel Rives attorney for specific advice, contact Melissa Jones at (916) 319-4649 or melissa.jones@stoel.com or Stephanie Meier at (206) 386-7546 or stephanie.meier@stoel.com.